Burle Industries

National Labor Relations Board - Board Decisions

Oct 15, 1990

300 N.L.R.B. 498 (N.L.R.B. 1990)

498
300 NLRB No. 50
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In agreeing with the judge that Frederick Skinn was engaged in protected,
concerted activity on October 6, 1988, we find that Skinn’s effort to induce
group action by urging individual employees to leave the work area if they
felt ill due to the chemical fumes constituted concerted activity. Mushroom
Transportation Co. v. NLRB, 330 F.2d 683 (3d Cir. 1964), cited with approval
in Meyers Industries, 281 NLRB 882, 887 (1986), affd. 835 F.2d 1481 (D.C.
Cir. 1987), cert. denied 487 U.S. 1205 (1988). Further, we note Skinn’s
unrebutted testimony that Production Superintendent Richards stated to Super-
visor Cechak, ‘‘didn’t you say that [Skinn] led these people out of the fac-
tory,’’ and Cechak replied affirmatively. We thus find that in addition to
Skinn’s actual participation in concerted activity, the Respondent clearly had
the perception that Skinn had engaged in concerted activity.
2 We have modified the judge’s recommended Order to comport with the
Board’s standard language directing reinstatement and removal of records.
Burle Industries, Inc. and Frederick A. Skinn. Case
4–CA–17734
October 15, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On May 23, 1990, Administrative Law Judge John
H. West issued the attached decision. The Respondent
filed exceptions and a supporting brief and the General
Counsel filed cross-exceptions and a supporting brief.
Both the General Counsel and the Respondent filed an-
swering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions, and
briefs and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Burle
Industries, Inc., Lancaster, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Offer Frederick Skinn immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against him, in the manner set forth
in the remedy section of the decision.’’
2. Substitute the following for paragraph 2(b).
‘‘(b) Remove from its files any reference to the un-
lawful discharge and notify Frederick Skinn in writing
that this has been done and that the discharge will not
be used against him in any way.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge any of you because you
have engaged in protected, concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Frederick Skinn immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against him, plus
interest.
WE WILL notify Frederick Skinn that we have re-
moved from our files any reference to his discharge
and that the discharge will not be used against him in
any way.
BURLE INDUSTRIES, INC.
Barbara A. O’Neill, Esq., for the General Counsel.
John H. Leddy, Esq. (Schnader, Harrison, Segal & Lewis),
of Philadelphia, Pennsylvania, for the Respondent.
Frederick A. Skinn, of Lititz, Pennsylvania, pro se.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. On a charge
filed November 23, 1988, by Frederick A. Skinn, a com-
plaint was issued on January 26, 1989, alleging that Burle In-
dustries, Inc. (Burle or Respondent) violated Section 8(a)(1)
of the National Labor Relations Act (Act) by discharging
Skinn because he engaged in concerted activities in connec-
tion with the objections of employees of the Respondent to
chemical fumes in the workplace. Respondent denies the al-
legation.
A hearing was held in Lancaster, Pennsylvania, on June 5
and 6, 1989. On the entire record in this case, including my
observation of the demeanor of the witnesses and on consid-
eration of the briefs filed by General Counsel and the Re-
spondent, I make the following
499BURLE INDUSTRIES
1 Prior to being owned by Burle, the facility was owned and operated by
General Electric (GE) and prior to that it was owned and operated by RCA.
2 Burle purchased the facility from GE in 1987.
3 Reed testified that she believed that at about 6 p.m. Skinn approached her
from a group of employees and said that he was not working in this condition
anymore and ‘‘[i]f you don’t do something about it, I’m bringing in outside
help.’’
4 Jt. Exh. 2. As here pertinent, the document reads as follows:
EFFECTS OF OVEREXPOSURE; Acute: Eyes: Can cause severe irri-
tation, redness tearing, blurred vision. Skin: Prolonged or repeated contact
can cause moderate irritation and dermatitis. Breathing: Can cause nasal
and respiratory irritation, dizziness, and nausea. Aspiration into the lungs
can cause chemical pneumonitis, which can be fatal. Ingestion: Can cause
gastronointestinal irritation, nausea, vomiting and diarrhea. Intentional
misuse by deliberately concentrating and inhaling the vapors may be
harmful or fatal.
CHRONIC EXPOSURE: Solvents have been reported to cause perma-
nent brain and nervous system damage with possible liver and kidney
damage. Respiratory and skin sensitization.
5 Jt. Exh. 3. The label reads in part as follows:
DANGER: CONTAINS AROMATIC PETROLEUM DISTILLATES
AND 2-BUTOXYETHANOL. WHEN APPLYING, FORCED VEN-
TILATION MUST BE PROVIDED (E.G. EXHAUST FANS, ETC.).THE
AIR MOVEMENT MUST BE SUFFICIENT ENOUGH TO REDUCE
THE VAPOR LEVEL BELOW THE ESTABLISHED OSHA TLV LIM-
ITS. IF SUCH VENTILATION CANNOT BE ACCOMPLISHED, THE
OPERATOR MUST WEAR A CHEMICAL RESPIRATOR APPROVED
FOR ORGANIC VAPORS (NIOSHTC23C). BEFORE PROCEEDING
WITH THE APPLICATION, MAKE SURE THAT HEATING OR
COOLING VENTILATION SYSTEMS OR OPEN DOORS OR WIN-
DOWS WILL NOT SUBJECT UNSUSPECTING PERSONS TO SOL-
VENT VAPORS. . . . FIRST AID: Inhalation: Move person to fresh air.
If breathing difficulty persists or occurs later, call a physician and provide
Continued
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and has been at all times material, a cor-
poration engaged in the manufacture of electronic surveil-
lance equipment, with a principal place of business located
in Lancaster, Pennsylvania.1 The complaint alleges, the Re-
spondent admits, and I find that at all times material, Re-
spondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
Respondent’s production, maintenance, and warehouse em-
ployees are represented by the International Brotherhood of
Electrical Workers, Local No. 1666. Technical employees
such as Skinn, who is a manufacturing engineering techni-
cian, are excluded from the unit. Skinn worked in Respond-
ent’s Department 33 on the second shift. He was responsible
for maintaining the equipment and the machines on one of
Respondent’s three production lines during the second shift.
He worked for Burle, GE, and RCA for a total of 9 years.2
Regarding Respondent’s management, it is noted that, as
here pertinent, Paul Rintz is one of Respondent’s owners and
vice president of security products, William Hackman is the
manager of manufacturing at the facility; that at the time in-
volved, Dale Cartwright was the manager of manufacturing
engineering and reported to Hackman; that Robert Richards
is the superintendent of production in security products man-
ufacturing and reports to Hackman; that the supervisors for
the production employees in Department 33 on the second
shift on the night of October 6, 1988, were Eric Cechak and
Holly Reed, both of who report to Richards; that Skinn re-
ported to Galen Lugsdun, a lead technician, who worked on
the first shift; and that Lugsdun, in turn, reported to Cart-
wright.
On October 6, 1988, during the second shift, an outside
contractor was doing some remodeling work in a part of the
plant 375 feet from Department 33. Sometime between 5:15
p.m. and 5:30 p.m. employees in Department 33 began to no-
tice a strong odor. Some of the employees started to get a
headache and some of the employees started to experience
burning eyes, nauseousness, and dizziness. Skinn’s face was
red and he had a headache. Some of the employees, includ-
ing Skinn, left Department 33 and went to the mall area out-
side the building. One of the employees, Martha Faucett, told
Reed that there was an odor in the Department 33 area and
employees were leaving that area. Dwain Faucett, the union
steward in Department 33, investigated the odor. Skinn went
to a building across the mall area from the building that con-
tained Department 33 and called Cechak, telling him that he
had a crisis on his hands; and that he should evacuate the
department or Skinn ‘‘would call outside the plant.’’ Cechak
testified that Skinn said that if they were not going to do
anything about the chemical spill, he was going to get out-
side authorities to take care of it.3
Skinn went back to the mall area and suggested to the em-
ployees standing outside that they should report to the cafe-
teria where there would undoubtedly be a head count. All of
Department 33 was evacuated between 6:05 p.m. and 6:30
p.m. It was determined, after Reed took a roll call, that there
was an employee missing. Skinn told some of the employees
in the cafeteria that if anyone intended to go back into De-
partment 33 to look for the employee, they should bring
someone with them. Skinn also told Reed that she did not
look well and that if she intended to go back into Depart-
ment 33 to look for the missing employee, she should bring
someone with her. Reed said that Skinn was blowing the sit-
uation out of proportion. And in reply, Skinn asked Reed ‘‘if
that is true, then why is your face flushed?’’ Reed responded
that it was because she had been running around. But Skinn
then told Reed that her face was flushed because she was
being affected by the fumes. Reed disagreed and Skinn then
said that she was a ‘‘poor example of responsible super-
vision.’’ According to Skinn’s testimony, Reed laughed and
walked away.
While the employees were kept in the cafeteria for ap-
proximately 2 hours, Cechak and Reed informed them of the
source of the fumes and gave the employees a copy of a ma-
terial safety data sheet (MSDS), which is a form prepared by
chemical manufacturers which contains the health hazard in-
formation.4 Dwain Faucett pointed out that the MSDS they
had was not in fact for the chemical that was being used that
night since the odor was not a citrus odor. When the outside
contractor stopped the work and left the plant, he left the
wrong MSDS behind. The employees were told by Cechak
and Reed that they saw the correct MSDS and it was similar
to the MSDS they were showing the employees. As here per-
tinent, Cechak had spoken with Norm Seidman, the chemical
engineer for the plant, who, along with Cechak, concluded
that the chemical was not hazardous in a properly ventilated
room. While they were in the cafeteria, the employees cir-
culated a label which was alleged to have come off the 5-
gallon can containing the chemical in question.5
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
label information. EYE CONTACT: Flush with water for 15 minutes.
SKIN CONTACT: Wash with soap and water. IF SWALLOWED: DO
NOT INDUCE VOMITING. Call a physician and provide label informa-
tion. Reports have associated repeated and prolonged occupational over-
exposure to solvents with permanent brain and nervous system damage
and possible liver and kidney damage.
Cechak and Reed informed the employees at about 8:30
p.m. that Department 33, which had been ventilated, was
now safe and the employees should go back to work. Em-
ployees were told that if they were bothered by the fumes
they were free to leave. Some of the employees who went
into Department 33 decided that the fumes were still bad and
they went back to the cafeteria. Steward Faucett told Cechak
and Reed that the odor was still strong and the involved em-
ployees were excused from working and returned to the cafe-
teria. About 30 minutes later they again checked the work
area and returned to the cafeteria. It was about 10:30 p.m.
before some of these employees began to work and even
then some of them did not stay in the department.
While Skinn and some of the employees sat in the cafe-
teria between 8:30.p.m. and 9 p.m., other employees came
back into the cafeteria complaining about the fumes. Skinn
called Reed and asked her what the situation was in the de-
partment. Reed told Skinn that people were working on the
line. Reed told Skinn that she had told the employees that
if the fumes bothered them they could leave. Skinn asked
Reed if she saw any evidence of people being coerced to
stay in the department. Skinn told Reed that he thought that
the employees were afraid to leave because they were trying
to please their supervisor. Reed said that was ridiculous.
Skinn then unsuccessfully attempted to speak to Hackman or
Rintz.
Skinn then went back into Department 33 and asked em-
ployees on the line individually whether they were bothered
by the fumes. He told them that if they were bothered by the
fumes, they did not have to stay and work, and that they
could leave. Skinn did not remember any of them leaving.
Reed testified that she heard Skinn say ‘‘[d]on’t be afraid to
leave. Don’t make [sic] them force you to stay. This is caus-
ing brain damage.’’ Skinn was talking to another employee,
Bob Sea, when Reed approached him, Skinn, in Department
33. She asked Skinn if he had a problem. According to
Skinn’s testimony, he told Reed ‘‘Holly, just walk away.’’
According to Reed’s testimony, Skinn said ‘‘[d]on’t give me
that shit, asshole. Just turn and walk away.’’ Reed then said
‘‘[n]o, Fred, I really want to know, do you have a prob-
lem?’’ Skinn then asked Reed what she intended to do about
the situation. Reed replied, ‘‘[w]hat situation, there is no sit-
uation.’’ Skinn then said ‘‘I don’t believe this . . . I’m glad
I have witnesses to this, I want to get another witness for
this.’’ Skinn them called over another employee, Pete Kinzer.
Skinn then said ‘‘how about this situation with these people
. . . being coerced to work on this line, that they are staying
here to make you happy because they feel that they could
be reprimanded if they leave, but they are feeling sick and
they need to be excused.’’ Reed replied, ‘‘Fred, this is not
the situation here at all.’’ According to Skinn’s testimony, he
lost his temper and he told Reed twice that she was a
‘‘fucking asshole.’’ According to Reed’s testimony, Skinn
said something like ‘‘you’re a fucking asshole and your play-
ing mind games with us all.’’ Reed then left. Skinn testified
that there was only one other employee present during this
exchange; that he spoke in a lower than normal conversa-
tional tone; and that the employees who were nearby could
have heard what he said. Kinzer testified that he did not
overhear the exchange between Reed and Skinn.
Skinn then went back to building 15 and telephoned Hack-
man, telling him that there had been fumes in Department
33; that it had taken a long time to evacuate the department;
that the employees had been given the wrong MSDS but they
had seen the label from the 5-gallon can which contained the
chemical that was causing the fumes, which label indicated
that the chemicals were dangerous even though Cechak said
they were not; that employees were being asked to work in
fumes but were told they could leave for a breather; that em-
ployees were told that they should come back and continue
working until they need another breather; and that he did not
think Hackman would want his factory to be run in this way.
Hackman told Skin that he was ‘‘getting a little emotional’’
and he asked Skinn to tell Cechak to call him. Skinn called
Cechak and told him to call Hackman.
Skinn then went to the cafeteria. About 1 minute later,
Cechak told Skinn that Richards wanted to talk to him. Rich-
ards had arrived at the plant at about 10:15 p.m. and almost
immediately asked Cechak to bring Skinn to his, Richards’,
office. Skinn followed Cechak back to the stairway which
leads to the supervisors’ offices. Richards was standing on
the landing in the middle of the stairway. Skinn stopped and
said that he thought he should have a witness for this. Rich-
ards shouted to Skinn, ‘‘Fred get your ass up here.’’ Skinn
repeated his request for a witness and Richards, according to
Skinn’s testimony, said ‘‘Eric can be your witness. Fred get
your fucking ass up here now.’’ Richards testified that he did
not use the word ‘‘fucking’’ but only said ‘‘get your ass up
here.’’ Cechak and Reed corroborated Richards on this point.
The latter testified that she was in the bathroom for the entire
conversation between Skinn and Richards. Richards, Cechak,
and Skinn are in agreement on this point. Yet Reed also tes-
tified that she came out of the bathroom and overheard this
exchange. According to Skinn, Reed did not appear until
Skinn descended the stairs when he finally left Richards’ of-
fice.
Skinn went into the office with Richards and Cechak. The
former told Skinn that he had interfered with the supervisors
and called Reed a ‘‘fucking asshole.’’ According to Skinn’s
testimony, Richards said to Cechak ‘‘didn’t you say that he
led these people out of the factory?’’ And Cechak replied,
‘‘he led them right out of the factory.’’ Also, according to
Skinn’s testimony, Richards yelled at him for that. Skinn told
Richards that the fumes were very bad; that the employees
had the label off the can for the involved chemical; that they
were given the wrong MSDS and, as a result, they could not
evaluate the dangers; and that the employees were com-
plaining as they worked. Richards told Skinn to leave. Ac-
cording to Skinn’s testimony, as he approached the top of the
stairs Reed came out of the bathroom. He apologized to
Reed for his conduct that night and then left the building.
The next day Skinn called in sick. Cartwright telephoned
Skinn that afternoon, told him that he was suspended for 3
days and read the 3-day suspension letter which gave the fol-
lowing reasons: (1) interfering with two supervisors in their
authorized responsibilities with hourly personnel, (2) abusive
and obscene language directed to a female supervisor in the
presence of others, and (3) being generally disruptive in the
501BURLE INDUSTRIES
6 R. Exh. 1. The grievance also indicates that the employees were permitted
to get a breath of fresh air ‘‘but must return to work.’’ Also, the grievance
indicates that many employees were afraid to evacuate for fear of repercus-
sions at some later time.
manufacturing area during a time that required calmness,
thereby creating more problems. Cartwright told Skinn to re-
port to Dan Bronson, Respondent’s manager of employment
development on October 12. It was decided on October 10,
1988, to terminate Skinn when he reported back from his 3-
day suspension on October 12, 1988, because of his behavior
on the night of October 6, 1988. Skinn called in sick on Oc-
tober 12. On October 13, 1988, Cartwright telephoned Skinn,
after he called in and indicated that he would not be at work,
and notified him of his termination.
Steward Faucett filed a grievance demanding ‘‘a longer
evacuation time when obnoxious fumes are present in a work
area.’’6 The grievance was pending at the time of the hear-
ing.
B. Contentions
On brief, General Counsel contends that Skinn has the
same level of Section 7 protection as the unit employees; that
Section 7 of the Act declares that ‘‘[e]mployees shall have
the right to . . . engage in other concerted activities for the
purpose of . . . mutual aid and protection’’; that Section 2(3)
of the Act defines an employee as ‘‘any employee’’ and in
no way excludes employees who are not part of a voluntarily
recognized or certified bargaining unit; that the fact that the
unit employees had a steward present that night does not
alter this conclusion; that since this was not a situation where
the Employer had sought union approval for going back to
work and the Union agreed that it was okay for the employ-
ees to go back to work, Skinn’s conduct can in no way be
construed as contravening, or undermining, the Union’s role
that night; that Skinn was engaged in concerted activity on
October 6, 1988; that in situations where other employees are
present when an individual employee engages in alleged con-
certed activity, the Board will conclude that the individual
was authorized to act by the other employees in the absence
of some sort of disavowal by those employees present, Con-
sumers Power Co., 282 NLRB 130, 131 (1986); that if an
individual employee expresses his support for another em-
ployee’s complaint, that conduct is presumed concerted with-
out any evidence of authorization, Churchill’s Restaurant,
276 NLRB 775, 776–777 (1985); that in order to find
concertedness in an individual employee’s action, the Board
looks to see if there has been some discussion among em-
ployees concerning the issues raised by the individual em-
ployee, and that there has been some sort of consensus
reached by the employees that the issues must be addressed
by management; that the Board will also find individual em-
ployee conduct to be concerted if it is a ‘‘logical outgrowth’’
of group action and/or a ‘‘continuation’’ of group action and
it is not necessary to establish that the individual’s conduct
was previously authorized by the group; that Skinn’s entire
course of conduct that night was concerted activity; that his
conduct that evening was a logical outgrowth and continu-
ation of the initial group walkout; that Respondent knew that
Skinn was engaged in concerted activity on the night of Oc-
tober 6; that when Skinn was called upstairs to the super-
visor’s office to talk to Richards about the events that
evening, Richards said to Cechak, ‘‘didn’t you say that he
had led these people out of the factory’’ and Cechak replied,
‘‘he led them right out of the factory’’; that Skinn’s conduct
on October 6 was clearly protected; that it is well-established
that health and safety conditions are terms and conditions of
employment and that concerted activity in connection there-
with is for mutual aid and protection; that it is not necessary
to decide that Skinn’s concern that the employees not be ex-
posed to the fumes was legitimate since the answer to that
question does not affect the issue of whether Skinn was en-
gaged in protected concerted activity; that Skinn did not oth-
erwise lose his protection under the Act because of his al-
leged misconduct on October 6; that the reasons Respondent
gives for the discharge are based on activity which is so
closely tied to Skinn’s protected concerted activity that this
activity is itself protected; that the Board has long held that
there are certain parameters within which employees may act
when engaged in concerted activities; that in Consumers
Power Co., supra at 132, the Board stated
The protections Section 7 affords would be meaningless
were we not to take into account the realities of indus-
trial life and the fact that disputes over wages, hours,
and working conditions are among the disputes most
likely to engender ill feelings and strong responses.
Thus, when an employee is discharged for conduct that
is part of the res gestae of the protected concerted ac-
tivities, the relevant question is whether the conduct is
so egregious as to take it outside the protection of the
Act, or of such a character as to render the employee
unfit for further service;
that the Board recognizes that concerted activity may involve
very emotional situations and gives some leeway for mis-
conduct that occurs during the course of that concerted activ-
ity; that in analyzing whether words said during concerted
activity would require a finding that the individual has lost
his/her protection under the Act, the Board will examine the
surrounding circumstances and take into consideration the
subject matter of the discussion, where the discussion took
place, the nature of the employee’s outburst, and whether the
outburst was provoked; that in general, unless the employee,
by words or conduct, threatens physical injury or clearly in-
dicates that he/she would no longer be fit for further employ-
ment, the employee does not lose his protection under the
Act; that in Great Dane Trailers, 293 NLRB 364 (1989), the
Board concluded that an employee who was engaged in con-
certed activity did not lose his protection under the Act
when, on the production floor, in the presence of another
hourly employee, he called his foreman a ‘‘fucked up fore-
man’’; that the burden is on the Respondent to establish that
the employee’s conduct was sufficiently egregious so as to
justify the discharge; that in ‘‘The Loft,’’ 277 NLRB 1444
(1986), it was asserted that the employee engaged in con-
certed activity called her employer a ‘‘fucking asshole’’ and
the administrative law judge who handled that case con-
cluded that if the employee did call her employer a ‘‘fucking
asshole,’’ under the circumstances she did not lose her pro-
tection under the Act; that regarding Skinn calling Reed a
‘‘fucking asshole,’’ this conversation was provoked by Reed
in that Reed approached Skinn at a time when there really
was not any reason to do so, Reed questioned Skinn about
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert.
denied 474 U.S. 948 (1985), Meyers Industries, 281 NLRB 882 (1986), affd.
sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487
U.S. 1205 (1988). In the first Meyers decision, the Board also concluded, at
497, that ‘‘[o]nce the activity is found to be concerted, an 8(a)(1) violation
will be found if, in addition, the employer knew of the concerted nature of
the employee’s activity, the concerted activity was protected by the Act, and
the adverse employment action at issue (e.g., discharge) was motivated by the
employee’s protected concerted activity.’’
his ‘‘problem’’ when she had just discussed the matter with
him over the phone, and Reed made light of the situation;
that under these circumstances the verbal abuse directed at
Reed was in the heat of the moment and was ‘‘animal exu-
berance’’ and are so intricately connected to Skinn’s con-
certed activity that it does not warrant a finding that Skinn
lost his protection under the Act; that Respondent discharged
Skinn because of his concerted protected activity on October
6; that Respondent’s defenses that Skinn interfered with su-
pervisors and that Skinn was generally disruptive are pre-
texts; that Respondent has failed to meet its burden under
Wright Line, 251 NLRB 1083 (1980), to show that Skinn
would have been fired for his ‘‘abusive and profane’’ lan-
guage in the absence of his protected concerted activity; that
in Department 33 Skinn only reminded the employees that if
the fumes were still bothering them, they were permitted to
leave the department which was nothing more that repeating
the instructions of Reed and Cechak; that this conduct could
hardly be perceived as interference with the authority of
Reed and Cechak or of being disruptive; that Skinn did not
convince anyone to leave the department so there was no
evidence that Skinn interfered with production by this con-
duct; that Skinn was a long-term employee of Respondent
and its predecessor and Skinn had a good work record; that
up until this incident Skinn had never had any similar dis-
ciplinary problems; that comparing Skinn’s employment
record to those of employees John Nguyen and Ray Durkaj,
Respondent cannot argue that Skinn would have been dis-
charged in the absence of his protected concerted activity in
that the former was not terminated after (1) saying ‘‘Fuck all
Americans’’ on the production floor and subsequently accus-
ing Supervisors Sara Wortman and Dick Nuss of ‘‘oppress-
ing him’’ and repeatedly using the word ‘‘fucking’’ in their
presence, and (2) threatening to kill fellow employee Mike
Emerich; that Wortman prepared a memorandum concerning
the incident and discussed the incident with Cartwright; that
Wortman thought Nguyen’s conduct ‘‘was distracting to the
second shift operators,’’ his language was ‘‘abusive and
threatening,’’ and he would not listen to supervisors directing
him to calm down; that notwithstanding the fact that this was
the third similar disciplinary incident with Nguyen within a
4-month period, Cartwright did not terminate him; that Cart-
wright’s attempt to downplay the profanity in the Wortman
incident is curious in light how important a factor it played
in the decision to terminate Skinn; that the fear expressed by
Wortman is almost identical to the fear expressed by Reed
over Skinn’s behavior; and that while Durkaj, an hourly em-
ployee with a mediocre work record, was fired for threat-
ening to kill his supervisor, Respondent subsequently agreed
to reinstate this employee without backpay.
Respondent argues, on brief, that General Counsel failed
to sustain the burden of proving that on October 6 Skinn was
acting ‘‘with or on the authority of other employees.’’ Mey-
ers Industries, 268 NLRB 493, 497 (1984);7 that it was not
Skinn’s involvement in leaving Department 33 and later re-
fusing to return to work there at 8:30 p.m. which led to his
discharge but rather his individual activities in harassing Re-
spondent’s supervisors, making unwarranted statements that
the employees were in danger of ‘‘brain damage’’ and call-
ing Supervisor Reed a ‘‘fucking asshole’’ in the presence of
bargaining unit employees; that it is clear that none of these
activities were performed ‘‘on the authority of other employ-
ees’’; that the employees in Department 33 were represented
throughout the shift by Steward Faucett and there was not
one scintilla of evidence presented by the General Counsel
that any of the employees authorized Skinn to act on their
behalf; that General Counsel’s evidence of alleged disparate
treatment proves nothing; that the situation involving Giang
Nguyen, Wortman, and Nuss did not involve supervisors but
was a disagreement among members of the technical staff;
that there was no evidence presented that the use of the word
‘‘fucking’’ was directed at the female employee involved in
an abusive, insulting manner, but was merely an expletive
used by Nguyen in the course of the conversation; that there
was no emergency situation in progress at the time of the
Nguyen incident, and Nguyen’s statements, as opposed to
Skinn’s were not made to bargaining unit employees in an
attempt to upset them and exacerbate an already difficult sit-
uation; that Nguyen’s conduct did not interfere with the ef-
forts of Respondent’s supervisors and the employees’ union
representative in dealing with such a situation as did Skinn’s
conduct; that Durkaj’s situation involved a threat by him to
a supervisor and he was terminated for this threat; that a ref-
eree for the Pennsylvania Unemployment Compensation
Board made findings of fact that (a) Durkaj had been har-
assed by the supervisor involved, (b) the alleged threat was
not meant literally, and (c) Durkaj’s actions did not con-
stitute willful misconduct; that the Union filed a grievance
protesting Durkaj’s discharge; that the Union and the Com-
pany settled the grievance on June 13, 1988 by reducing
Durkaj’s discharge to a disciplinary suspension without back-
pay; that there is no possible relevance between the handling
of the Durkaj situation and its resolution by compromise and
the discharge of Skinn for his nonconcerted, unprotected, fla-
grantly improper conduct in that there is no evidence in the
instant case that Skinn was harassed in any manner by the
supervisors, and Skinn freely admitted that he deliberately
called a female supervisor a ‘‘fucking asshole’’ in the pres-
ence of the employees she supervised; that while some miti-
gating facts were put forth by the Union to explain Durkaj’s
statement, no mitigating facts were presented to excuse
Skinn’s statements and conduct on October 6; and that
[i]t is clear that the unauthorized and unwarranted at-
tempts by Charging Party to intrude himself into a situ-
ation on October 6, which was being appropriately and
adequately handled by Respondent’s supervisors and
the representative of the employees bargaining agent,
were not authorized by the bargaining unit employees
and were not part of any group action by the bargaining
unit employes. Charging Party’s egregious and vulgar
conduct in twice calling a female supervisor a ‘‘fucking
asshole’’ in the presence of the bargaining unit employ-
ees she supervised cannot possibly be sanctioned as
being protected by Section 7 of the Act.
503BURLE INDUSTRIES
8 There is no explanation in the record with respect to the date on the
memorandum.
Whether Charging Party was driven by a Messianic
complex or his mistaken view that ‘‘a higher concern’’
or his interest in ‘‘human kind’’ . . . required his aber-
rant behavior on October 6, it is clear that, under the
Board’s directive in Meyers, the counsel for the General
Counsel has not sustained her burden of proving that
his conduct was ‘‘engaged in with or on the authority
of other employees.’’
Analysis
Section 7 of the Act grants employees the right ‘‘to en-
gage in . . . concerted activities for the purpose of collective
bargaining or other mutual aid or protection.’’ And Section
8(a)(1) of the Act makes it an unfair labor practice for an
employer ‘‘to interfere with, restrain or coerce employees in
the exercise of the rights guaranteed in Section 7.’’ To be
protected under the Act, the employee’s activities must be
‘‘concerted’’ and ‘‘protected.’’
In Meyers Industries, 268 NLRB 493, 497 (1984), the Na-
tional Labor Relations Board (Board) concluded:
In general, to find an employee’s activity to be ‘‘con-
certed,’’ we shall require that it be engaged in with or
on the authority of other employees, and not solely by
and on behalf of the employee himself. Once the activ-
ity is found to be concerted, an 8(a)(1) violation will
be found if, in addition, the employer knew of the con-
certed nature of the employee’s activity, the concerted
activity was protected by the Act, and the adverse em-
ployment action at issue (e.g., discharge) was motivated
by the employees protected concerted activity.
Skinn’s involved activity on the night in question occurred
during a continuation of the concerted protected activity
which involved employees (1) leaving Department 33 with-
out prior permission from the supervisor, (2) questioning the
supervisors’ assessment of the hazard involved when the su-
pervisors were unable to provide the proper documentation
and the odor was not in accord with the documentation pro-
vided, (3) obtaining a label from a 5-gallon can which con-
tained the chemical involved, and (4) some refusing to return
to work at 8:30 p.m. when the supervisors indicated that it
was okay to return to the department.
As noted above, subsequently the employees, through their
steward, filed a grievance alleging that many employees were
afraid to evacuate for fear of repercussions at some later
time; that while employees were permitted to get a breath of
fresh air, they had to return to work; and that a longer evacu-
ation time is needed in similar circumstances.
While originally the supervisors told the employees that it
was okay to return to the department after 2 hours, at 8:30
p.m., some of the employees did not return until 10:30 p.m.
and even then not all the employes remained in the depart-
ment. In other words, it took twice as long, in the opinion
of those employees, for the department to be properly venti-
lated than the supervisors originally estimated.
Cechak’s memorandum regarding the events of the
evening in question, General Counsel’s Exhibit 14, is at-
tached as appendix A.8 The exhibit speaks for itself.
As noted above, Respondent, on brief, submits that what
led to Skinn’s discharge was his (1) harassment of super-
visors, (2) making unwarranted statements that the employees
were in danger of ‘‘brain damage,’’ and (3) calling Super-
visor Reed a ‘‘fucking asshole’’ in the presence of bar-
gaining unit employees.
Contrary to the picture presented by Respondent on brief,
this was a bad situation. Employees were physically suffering
from the involved chemical. Supervisors did not have the
proper documentation on hand at the time so that employees
could be sure that they were not going to be harmed. It was
obvious to the employees that the documentation supervisors
provided did not cover the involved chemical since the odor
was different. Apparently the supervisors did not provide the
label from the container which held the chemical. The em-
ployees themselves obtained the label and passed it around.
As noted above, the label states, among other things:
‘‘[r]eports have associated repeated and prolonged occupa-
tional overexposure to solvents with permanent brain damage
and nervous system damage and possible liver and kidney
damage.’’ The supervisors advised the employees that they,
the supervisors, had seen the applicable documentation and
there was nothing to be concerned about. These were the
same supervisors who told the employees that it was alright
to return to Department 33 at 8:30 p.m. when in fact certain
of the employees and the union steward refused to return at
that time since those employees could not take the fumes still
present in the department. When Skinn went down the line
and spoke to individual employees, which was during the pe-
riod when other employees refused to work in Department
33, he was doing two things, namely (1) repeating what su-
pervisors had already told the employees—that they could
leave the line if they were bothered by the fumes, and (2)
advising them that there was a risk of brain damage. Regard-
ing the latter, as noted above, the label had been passed
around among the employees while they were evacuated in
the cafeteria. In other words, if they were literate and if they
looked at the label, they read the same information as Skinn.
In those circumstances, Skinn’s statement about the risks in-
volved would be considered in the light of what they had al-
ready read. It was not demonstrated that any of the employ-
ees left the line to join the other employees who refused to
work in the fumes. So perhaps they concluded that the situa-
tion did not involve ‘‘repeated and prolonged occupational
overexposure’’ or perhaps, as asserted in the grievance which
Respondent introduced ‘‘[m]any people were afraid to evac-
uate for fear of repercussions at some later time.’’ Unlike
those situations where the employee acts on behalf of him-
self, here Skinn, if he believed these people were at risk—
and there is no reason to conclude that he believed other-
wise—was unnecessarily placing himself at risk by being in
the department at that time when he could have, as other em-
ployees did, stayed out of the department. In my opinion,
Skinn, up to this point, was engaged in a continuing con-
certed protected activity.
Respondent knew that Skinn was engaged in a concerted
protected activity. Neither Richards nor Cechak denied that
during their meeting with Skinn they discussed the fact that
Skinn led the employees out of the factory. Aside from the
cursing, which will be dealt with below, it was obvious that
everything that Skinn did that evening was part of a con-
tinuing concerted protected activity.
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 See G.C. Exhs. 2–11 which are memoranda complimenting Skinn for his
good work. One, G.C. Exh. 2(a), states ‘‘[o]n 2/29/88 an operator in the
ACI/SMD area was seriously injured, and the immediate actions of Fred Skinn
are to be commended. He acted appropriately in a time of panic, to aid the
injured person and seek medical help. His willingness to become involved in-
dicates that he is a valuable employee and is an asset to Burle Industries.’’
Did he lose the protection of the Act by calling Reed a
‘‘fucking asshole’’? As noted above, General Counsel con-
tends that Reed provoked Skinn since there was no reason
to approach Skinn and question him about his ‘‘problem’’
when she had just discussed the matter with him over the
phone, and that Reed made light of the situation. Add to this
the fact that Reed had to be aware that at that time other em-
ployees refused to work on one of the lines of the depart-
ment. General Counsel argues that Skinn’s verbal abuse of
Reed was in the heat of the moment and was ‘‘animal exu-
berance.’’ I agree. Skinn was a good employee with a good
work record9 who had never had any similar disciplinary
problems.
In Atlantic Steel Co., 245 NLRB 814, 816 (1979), the
Board stated:
The Administrative Law Judge cited no decisions,
however, and we know of none, where the Board has
held that an employee’s use of obscenity to a supervisor
on the production floor, following a question con-
cerning working conditions, is protected as would be a
spontaneous outburst during the heat of a formal griev-
ance proceeding or in contract negotiations. To the con-
trary, the Board and the courts have recognized . . .
that even an employee who is engaged in concerted
protected activity can by opprobrious conduct, lose the
protection of the Act.
The decision as to whether the employee has crossed
the line depends on several factors: (1) the place of the
discussion; (2) the subject matter of the discussion; (3)
the nature of the employee’s outburst; and (4) whether
the outburst was, in any way, provoked by an employ-
er’s unfair labor practice.
And in NLRB v. Thor Power Tool Co., 351 F.2d 584, 587
(7th Cir. 1965), the court stated:
As other cases have made clear, flagrant conduct of
an employee, even though occurring during the course
of [S]ection 7 activity, may justify disciplinary action
by the employer. On the other hand, not every impro-
priety committed during such activity places the em-
ployee beyond the protective shield of the Act. The em-
ployee’s right to engage in concerted activity may per-
mit some leeway for impulsive behavior, which must be
balanced against the employer’s right to maintain order
and respect. NLRB v. Illinois Tool Works, 153 F.2d 811
(7th Cir. 1946). Initially, the responsibility to draw the
line between these conflicting rights rests with the
Board, and its determination, unless illogical or arbi-
trary, ought not to be disturbed. In the instant case we
cannot say that the Board’s conclusion the Tinsley’s re-
mark was within the protection of [S]ection 7 was ei-
ther unreasonable or capricious.
Thor Power Tool Co. involved a grievance meeting. The in-
stant case does not. Nonetheless, considering the cir-
cumstances of this case I do not believe that Skinn crossed
the line. His conduct was not violent or so extreme as to
render him unfit for further service. As noted above, this was
not the first time Reed and Skinn had words that night. Reed
and Cechak did not provide the correct documentation and
they told the employees to return to work well before many
of them could work in the fumes. During the confrontation
in question Reed was asserting that there was no situation
notwithstanding the fact that at that very time some of the
employees refused to work in the department. While Skinn’s
profanity cannot be condoned, the frustration he must have
felt at that time should be taken into consideration. Unlike
Atlantic Steel Co., the situation at hand did not involve a
question about overtime and a prompt answer by the super-
visor on the production floor which evoked, without provo-
cation, an obscene reply from the employee. Here there was
an emergency situation. Employees were told to accept the
supervisors’ assessment of the hazards involved and to return
to work. Some refused. It appears that Skinn, who could
have remained in the cafeteria, was concerned whether those
who were working on the line appreciated the situation. Reed
did not appreciate this and she confronted Skinn. In view of
what had occurred, and in view of the fact that Skinn be-
lieved that Reed was making light of what he viewed as a
grave situation, he reacted. He overreacted but again I do not
believe that he went over the line in the circumstances of this
case.
In my opinion, Respondent’s real reason for discharging
Skinn was his concerted protected activity. In Wright Line,
251 NLRB 1083 (1980), the Board set forth the following
causation test, as here pertinent, in cases alleging a violation
of Section 8(a)(1) of the Act which turned on employer moti-
vation:
First, we shall require that General Counsel make a
prima facie showing sufficient to support the inference
that protected conduct was a ‘‘motivating factor’’ in the
employer’s decision. Once this is established, the bur-
den will shift to the employer to demonstrate that the
same action would have taken place in the absence of
the protected conduct.14
14 In this regard we note that in those instances where, after all the
evidence has been submitted, the employer has been unable to carry its
burden, we will not seek to quantitatively analyze the effect of the un-
lawful cause once it has been found. It is enough that the employees’
protected activities are causally related to the employer action which is
the basis of the complaint. Whether that ‘‘cause’’ was the straw that
broke the camel’s back or a bullet between the eyes, if it were enough
to determine events, it is enough to come within the proscription of the
Act.
Here, General Counsel established a prima facie case. On the
other hand, Respondent, in my opinion, has not met its bur-
den to establish that the same action would have taken place
in the absence of the concerted protected conduct. Respond-
ent does not have a specific rule prohibiting profanity. And
notwithstanding Respondent’s protestations to the contrary,
the handling of the Nguyen matter by Cartwright sheds some
light on how Respondent had handled the use of profanity
on the production floor in the past. As noted above, Re-
spondent, on brief, contends that the disagreement involving
Wortman, Nuss, and Nguyen did not involve supervisors but
was a disagreement among members of the technical staff;
505BURLE INDUSTRIES
10 Under New Horizons, interest is computed at the ‘‘short-term Federal
rate’’ for the underpayment of taxes as set forth in the 1986 amendment to
26 U.S.C. § 6621.
11 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
12 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
that the profanity was not directed at Ms. Wortman; and that
the profanity was merely an expletive used in the course of
the conversation. Wortman, who described herself as a
leadperson, testified that she had the responsibility for the
technical supervision of two employees, including Nguyen.
She went on to testify that she had ‘‘supervision for their day
to day responsibilities.’’ Respondent’s policy for scheduling
vacations was to schedule with either the secretary,
Wortman, or Cartwright. When a conflict arose regarding the
scheduling of vacations she and Nuss discussed the matter
with Nugyen. Wortman testified that Nugyen said ‘‘you op-
press me’’ and he used the word ‘‘fucking’’ several times in
the course of the conversation. She did not remember the
exact statements that he used but she remembered that what
he said really upset her. In a subsequent conversation
Wortman had with Nguyen, which might have been in the
presence of Cechak, Nguyen again used the word ‘‘fucking’’
several times and threatened another employee’s life. In her
report of the incidents, General Counsel’s Exhibit 12, which
she gave to Cartwright, Wortman observed as follows:
1. His [Nguyen’s] conduct was distracting to the sec-
ond shift operators.
2. He would not listen to his direct supervisors (both
Dick and I). We told him to calm down many times
and he did not listen.
3. His language was abusive and threatening.
4. He was extremely angry over this vacation sched-
uling problem. What if it was something major?
5. His general state of mind did not seem rational.
Cartwright told Wortman that if she gave the report to him
he would have to take it to personnel and that it might result
in Nguyen being fired. Nonetheless, Wortman gave the re-
port to Cartwright. Cartwright did not submit the report to
personnel and he told Nguyen that any further action like this
could result in his dismissal. While it might be contended
that Nguyen’s profanity was not directed at Wortman person-
ally but rather was used generally in the conversations,
Wortman specifically reported that Nguyen’s language was
‘‘abusive and threatening.’’ Contrary to Respondent’s asser-
tion, Wortman was not just another member of the technical
staff. In her report, which she gave to Cartwright, she refers
to herself as a supervisor. Cartwright told her that if her re-
port was turned over to personnel Nguyen could be fired.
The fact that there was no emergency situation when
Nguyen’s profanity occurred weighs in Skinn’s favor. In
other words, words spoken in as stressful situation might be
viewed in a different light than words spoken when there
was no emergency. Cartwright and the Respondent handled
the Skinn and Nguyen situations in a different manner. In my
opinion the disparate treatment was the result of Skinn’s pro-
tected concerted activity. Skinn would have not been dis-
charged in the absence of his protected concerted activity.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Sections 2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by
discharging Frederick Skinn because he engaged in concerted
protected activities.
3. The aforesaid unfair labor practice affects commerce
within the meaning of Sections 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice, I shall recommend that Respondent be ordered
to cease and desist and take certain affirmative action de-
signed to effectuate the purposes of the Act.
Having found that Respondent discharged Frederick Skinn
in violation of Section 8(a)(1) of the Act, it is recommended
that Respondent offer Frederick Skinn immediate and full re-
instatement to his former job or, if that job no longer exists,
to a substantially equivalent position without prejudice to his
seniority or other rights and privileges, and make him whole
for any loss of pay he may have suffered as a result of the
discrimination against him by payment to him of a sum of
money equal to that which he would have earned as wages
during the period from the date of his discharge to the date
on which Respondent offers reinstatement less net earnings,
if any, during that period with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).10
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, Burle Industries, Inc., its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging an employee because he has engaged in
concerted protected activity.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Frederick Skinn immediate and full reinstatement
to his former or substantially equivalent job and make him
whole for any loss of earnings he may have suffered by rea-
son of Respondent’s discrimination against him in the man-
ner and to the extent set forth in the remedy section of this
decision.
(b) Remove all records kept of Frederick Skinn’s dis-
charge and make whatever record changes are necessary to
negate the effect of the disciplinary action taken.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, timecards, personnel records and reports and all
other records necessary to analyze the amount of backpay
due and the right of reinstatement under the terms of the rec-
ommended Order.
(d) Post at its facility in Lancaster, Pennsylvania, copies
of the attached notice marked ‘‘Appendix B.’’12 Copies of
the notice, on forms provided by the Regional Director for
Region 4, after being signed by the Respondent’s authorized
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps it has taken to com-
ply.
APPENDIX A
Bob,
Last evening we had to evacuate the department due to ex-
posure to a chemical. The time lost due to the events are as
follows: 2.5 hours of total production lost in both HCI and
Assembly (1.5 hours completely shut down and 1 hour lost
in slowed production). The ACI area had a loss of 5 hours
of down time (5 hours completely shut down). The events
that occurred last night are as follows:
6:00pm - Noticed strong smell, like that of a ‘‘sol-
vent’’. Informed security of this smell and proceded
[sic] to investigate. Discovered that the source of the
odor was a chemical which was being used by an out-
side contractor to remove the adhesive from the floors
in a closed off ventilated area. Contacted the contractor
and asked if the chemical was hazardous and requested
the MSDS on the chemical. The chemical was not haz-
ardous in a properly ventilated area. Began to contact
official people as to proper procedures.
6:30pm - Chemical odor increased in the department
causing complaints of red burning eyes, dry throat, and
difficulty breathing. Eric and security guard noticed a
‘‘haze’’ in the 33b area. The operators in the depart-
ment were then evacuated to the cafeteria. Attempted to
contact D. Tshudy and R. Hartzell, received no answer.
Contacted N. Seidman and informed him of the situa-
tion. It was agreed by the contractor and N. Seidman
that this work would stop. The total ventilation of the
department started at this point. Power house was in-
formed of the situation as well as our own efforts to
ventilate the area by opening doors and floor fans to
ventilate the department.
7:00pm - Operators were informed of the situation in
the department and were informed that the chemicals
posed no severe health hazards and that we were ven-
tilating the areas to make them safe to work in again.
Roll was taken at this time to insure that all operators
were present and accounted for.
7:30pm–8:00pm - Lunches for the HCI and Assem-
bly sides respectively, areas were still being ventilated.
8:15pm - Surveyed the areas for chemical odor. Odor
was still noticeable, but was safe to work in. Informed
the operators that we would attempt to resume work at
8:30 (after lunch). All operators were told that if the
odors were affecting them that they were free to leave
the area and go to an area where they felt that was safe.
8:30pm - Resumed production on HCI line and in
assembly. There was still a strong odor in the ACI area.
Production did not resume here at this time.
9:00pm to 12:00am - Production continued (but at a
slower pace than usual). Several operators left the line
when they felt the chemical was ‘‘affecting’’ them.
Many came back during the night. ACI production did
not resume this evening due to the odors still lingering
in that particular area.
During the evening other contacts were made including R D
Richards and W. Hackman. These are the events which
caused supervision to evacuate the department on the
evening of October 6, 1988. At no point in time prior to the
detection of chemicals, were any of the supervision notified
of the use of these chemicals.
Sincerely,
Eric A. Cechak
Holly Reed